Responding to Attacks on HB 2

NC Family president John Rustin talks with Kellie Fiedorek, legal counsel with Alliance Defending Freedom (ADF), about a lawsuit the American Civil Liberties Union (ACLU) filed recently against North Carolina’s new law, HB 2, the Public Facilities and Security Act, which has been under attack from LGBT activists and the media since it became law on March 23.

“Family Policy Matters”Transcript: Responding to Attacks on HB 2

INTRODUCTION: Kellie Fiedorek is legal counsel with Alliance Defending Freedom (ADF), where she serves on the Marriage and Family Team. ADF is an alliance-building, non-profit legal organization that advocates for the right of people to freely live out their faith.

Kellie is going to be talking with us about a lawsuit the American Civil Liberties Union (ACLU) filed recently against North Carolina’s new law, the Public Facilities and Security Act, or House Bill 2, which was passed by the General Assembly and signed into law by North Carolina Governor Pat McCrory on March 23. The Governor, our legislative leaders and this critically important piece of legislation have been under major attack from LGBT activists, the mainstream media, and some major corporate interests.

JOHN RUSTIN:Kellie, before we talk about the lawsuit filed by the ACLU, I want to talk for a few minutes about the bill itself, the Public Facilities and Security Act (HB2), because there is a lot of misinformation and frankly outright lies that are being circulated by opponents of the bill. These falsehoods are also being parroted over and over again by their allies in the media. It’s really like nothing I’ve ever seen before. Tell us about HB 2, and why it was even necessary.

KELLIE FIEDOREK: You’re so right that there have been so many lies and misrepresentations about this very common sense piece of legislation that the General Assembly called a special session to enact in response to overreach by the city council in Charlotte. And what HB 2 does, it simply clarifies that public bathrooms, locker rooms, showers are limited to persons of the same biological sex. And this is really important because in effect, it ensures that women, and especially children, will enjoy privacy when using the restroom and not be forced to shower or change in front of grown men.

JOHN RUSTIN:It’s really unreal that we’re even having to have this conversation, and I know a lot of people across the state feel the same way that this has just been shocking. It was shocking when the Charlotte city council passed the ordinance changes that they did back in February, and then this great outcry ensued across the state and fortunately our legislative leaders took up this legislation and passed it, and in that same day the governor signed the bill into law. One of the important things that HB 2 does is to set a statewide standard regarding the use of and access to restrooms in public facilities across North Carolina. Why is it important to have one standard across the state, instead of a patchwork of different policies in cities and counties around North Carolina?

KELLIE FIEDOREK: In addition to protecting against future attempts to erode the fundamental right to privacy in other venues across the state, this law also clarifies that under the North Carolina Constitution, it’s the state and not the local cities or other municipalities that is responsible for enacting new laws that regulate and impact commerce, they address employment issues as well. This is something that’s good for business; it’s good to have continuity, so that whether you’re in Charlotte or Raleigh or Winston-Salem, the same laws apply so that everyone is treated fairly and equally. And it’s good it’s good for trade, it’s good for the economy.

JOHN RUSTIN:And that’s a policy that North Carolina has had in place for many years. We are what is referred to as a Dillan’s Rule state, where cities and counties in North Carolina derive their full authority from the state Constitution, and from the General Assembly, so cities and counties as you said do not have the legal authority to go out on their own and make policy in certain areas of the law, and that’s exactly one of the major reasons that lead the General Assembly to come into session because the Charlotte city councilwent beyond their authority in enacting those ordinance changes that they did, and the legislature in a sense had to reel them back in.

KELLIE FIEDOREK: That’s right, really what the General Assembly was doing was simply clarifying what is already the law, because Charlotte really did overreach, and violated the North Carolina Constitution.

JOHN RUSTIN:We are generally supportive of a government that is close to the people, but there have been long-standing policies in North Carolina that our state lawmakers that are duly elected by people to represent them across the state have the authority to pass those statewide policies, and that it’s in the benefit of the state and also for business and commerce to have consistent policies across the state, so that businesses and individuals that work and operate in the business environment have consistency from locality to locality.

Now, let’s talk about the ACLU lawsuit, which was filed on March 29, really before the ink was even dry on HB 2. In addition to the ACLU, what other groups are involved in this legal challenge, and who are they representing?

KELLIE FIEDOREK: In addition to the ACLU, Equality North Carolina has also filed suit, and they’re representing a number of individuals, several of whom are transgender individuals. It’s interesting that they filed such a lawsuit because the law that North Carolina enacted protects everyone’s privacy by ensuring that bathrooms, showers, locker rooms, these types of intimate settings, remain private and based ones biological sex. But the law also offers accommodations to those with special circumstances, so it’s really surprising to see this challenged and to see really anyone oppose such a commonsense measure.

JOHN RUSTIN:It really is commonsense that men to into men’s bathrooms, women go into women’s bathrooms, and like you say there are accommodations that are made in the law, and that public schools and other entities have undertaken to allow for individuals to use a single-stall restroom or changing room if they feel that using another facility would be uncomfortable for them. And so there are efforts to make accommodations but that has not been sufficient for some, and then we see the ACLU and other groups like LAMBA Legal Defense file this lawsuit.

Now, I know that ADF has described the ACLU lawsuit against House Bill 2 as “baseless.” We at the Family Policy Council have read the lawsuit and just find it to be staggering in the statements that are made, the misguided representations that it makes, and statements that are really just pulled out of thin air that are presented here with no backup, with no basis, and it’s been entered into a court of law. It really seems like a frivolous lawsuit that should not even be considered by North Carolina courts, or federal courts for that matter, and it was actually filed in federal court. Talk about that a little bit.

KELLIE FIEDOREK: Well, first and foremost, the law enacted by the General Assembly last week, the privacy act, is perfectly constitutional, and the claims that the other side is making do lack merit. The law does not violate the equal protection clause, as asserted in the lawsuit, because all males are treated the same as all females under the law. The law, HB 2, only looks at a person’s biological sex; it doesn’t look at their gender identity or other characteristics. In fact, the law is really blind to these characteristics, so it sterily applies to everyone and allows every person to enter the bathroom that corresponds with their biological sex. And federal law says that as long as everyone is given equal access to comparable facilities, so you want to make sure that the men’s room is not cleaner or nicer than the women’s restroom, but as long as they’re comparable facilities, this is perfectly permissible and constitutional.

JOHN RUSTIN: For the benefit of our listeners, I think it’s important to point out too, that if an individual undergoes sex-reassignment surgery, they have the ability under North Carolina law to change the designation on their birth certificate, and so it would accommodate individuals who have that sort of an operation. Kellie, you talked about federal law a little bit. One of the things that the lawsuit challenges is that it says it’s a violation to a federal law known as Title IX. First of all, what is Title IX and what does it have to do with HB2?

KELLIE FIEDOREK: Title IX is a federal law that was enacted back in the early 1970s, and it was meant to remedy a long history of denying women equal opportunities for education. And so essentially what the ACLU is trying to do is to take a law that was meant to protect women, and now they’ve hijacked it in attempting to redefine sex.

JOHN RUSTIN: Just to put a little bit of skin on this, I’d like to read just a couple of claims that are made in this lawsuit to give our listeners a bit more of a direct understanding. And the lawsuit says, and I quote “The gender marker on a birth certificate is designated at the time of birth, generally based upon the appearance of external genetalia; however determinations of sex can involve multiple factors, such as chromosomes, hormone levels, internal and external reproductive organs and gender identity.” And the next sentence in this lawsuit says, “Gender identity is the primary determinate of sex.” And Kellie, I think the ultimate goal is creating a genderless society, so that any kind of activity or identity that an individual wants to undertake would be forced on a society to accept as perfectly normal, and equal to any other standard. What is your thought about that?

KELLIE FIEDOREK: Yeah, I agree, and that’s really unfortunate because as the law defines biological sex, it’s based on the sex when you’re born, which is also what’s on your birth certificate. And really at the end of the day this is only objective, sensible, enforceable policy on which to ensure that these private intimate areas continue to remain sex-specific, and private. It has to be based on what your biological sex is, not on any other type of characteristic, or feeling or inclination on any day, because we know that these are oftentimes fluid. And so they’re not a consistent, objective way to ensure that men continue to use the men’s room and women continue to use the women’s room.

JOHN RUSTIN:Kellie, our state leaders in North Carolina, including Governor Pat McCrory who signed HB 2 into law, have been under constant attack from the media, from some big corporations, and of course the LGBT or Lesbian, Gay, Bisexual and Transgender lobby since the law’s passage. Why do you believe we are seeing such hostility toward this common sense law and those who support it?

KELLIE FIEDOREK: Well it really is shocking, and these companies threatening to boycott North Carolina based on this law, what they’re really doing is protesting the right of young girls to enjoy privacy and security, and it’s unbelievable to me how we can see them weighing in against such an important measure, how they have become essentially pawns to promote this agenda, to create that genderless society. The fact that the MBA is publically opposing this, and choosing instead to support policies that would literally force women to undress and shower in the presence of men, this is really unfortunate. And if the right to privacy means anything, it certainly must mean that women and girls should not be compelled to undress, shower, or use the restroom in the presence of men.

JOHN RUSTIN: Kellie before you go, what encouragement would you offer to our listeners, and especially our state leaders, who may feel overwhelmed by the the vicious attacks against HB 2 and its supporters. Why is it so critical that we all hold the line, so to speak, and stand up for this law and for North Carolina’s right to enact it?

KELLIE FIEDOREK: I would just thank them first of all for their boldness, for their courage. They are on the right side of history, and they’re on the right side of this issue, and there may be a lot of polarizing issues in our country right now, but there’s nothing polarizing about protect the safety and security of our children and their future. Because that’s what’s really at stake here is ensuring that they can go to a bathroom and feel safe and secure when they go through those doors. So, I would just encourage everyone to continue to pray for the leaders, pray for those who filed this lawsuit, and continue to advance what is most the most important thing, which is the safety, the privacy, and security of our young girls.

JOHN RUSTIN: Absolutely. Well, Kellie, with that we are out of time for this week, but I want to give you an opportunity to let our listeners know where they can go to learn more about Alliance Defending Freedom.

KELLIE FIEDOREK: Certainly, if you go to adflegal.org adflegal.org you can find out more about us and about our work to protect freedom and the right to privacy, and how we love to partner with NC Family.